A New Sort of Regional EC in Utah
In early 2009, I started out <a href="http://www.cityethics.org/node/638" target="”_blank”">a blog post</a>, "Type
'ethics' into the search line at utah.gov, and all that comes up
is Archery Ethics Course Online." That is no longer true. In fact,
the state legislature not only has an ethics commission, it even
passed a local ethics commission act. And in response to
that act, some Utah municipalities have set up ethics commissions or hearing officers, and one group in
Davis County is even at work on a creative approach to a regional ethics
program, something I have advocated as a way to provide both independence and professionalism at a reasonable price.<br>
<br>
The state's local EC act gives local governments (including school
districts, development agencies, and special districts) three
choices with respect to an ethics program:<blockquote>
1. Establishing a local EC<br>
<br>
2. Entering into an interlocal agreement with "another" local
government to establish an EC, pursuant to <a href="http://www.le.utah.gov/UtahCode/section.jsp?code=11-13" target="”_blank”">the
state's Interlocal Cooperation Act</a><br>
<br>
3. Letting a new, elegantly named Political Subdivisions Ethics
Review Commission handle complaints (it does not appear to have been
established yet, although the law was passed over a year ago)</blockquote>
The biggest problem with the local ethics act is that it's all about enforcement. There is no mention of training
or advice. These are not prohibited; they are simply ignored. They are not part of the discussion.<br>
<br>
Most members of the state EC are to be former local officials, as if
they are in a better position to either appear independent or
understand and deal with conflicts of interest. The only purpose for
a meeting of the state EC is to consider a complaint.<br>
<br>
By so limiting the role of an ethics commission, Utah has
greatly undermined its wise allowance of regional ECs. If enforcement is all an EC is said to be
for, it will be formed only for enforcement, even though it could,
if its creators understood the value of training and advice, be
employed to be part of a comprehensive ethics program.<br>
<br>
<b>A Regional EC Consisting of City Attorneys</b><br>
According to <a href="http://www.sltrib.com/sltrib/politics/54920134-90/county-commission-eth…; target="”_blank”">an
article in the Salt Lake City <i>Tribune</i></a>, Davis County (pop.
300,000), whose seat is Farmington and largest city Layton, has
taken the lead in EC formation. The county was the first to
establish an EC. And four municipalities in the county are working
on a joint EC, according to <a href="http://www.standard.net/stories/2013/11/09/layton-joins-4-city-ethics-c…; target="”_blank”">an
article in the <i>Standard-Examiner</i> on Saturday</a>.<br>
<br>
When a complaint is filed against an official in one of the four
small cities, the city attorneys from three of the cities will form
a panel to hear the complaint. The city attorney from the official's
city will defend the respondent.<br>
<br>
The city attorney for one of the four cities calls this approach a
model. And it certainly is a clever approach to enforcement. But it makes a
false assumption and places city attorneys into some serious conflict of
interest situations.<br>
<br>
<b>Problems with This Approach</b><br>
The false assumption is that a city attorney should defend an
official who has been alleged to have violated an ethics provision. An official acting in the public
interest should certainly be defended by a city attorney, at the
taxpayer's expense. But what about an official who has been acting
in her personal interest, or in the interest of her family members
or business associates? Should such an individual be defended by a
city attorney, at the expense of the very taxpayers whose interests
she has ignored in favor of her own? Isn't it better to recompense an official for reasonable legal expenses when it is determined that she did not violate the ethics code?<br>
<br>
As for conflicts of interest, city attorneys are under the
jurisdiction of the panel on which they sit. What happens when a
complaint is filed against a city attorney? <br>
<br>
This is not likely to happen often. But what is likely to happen is
that the clients of city attorneys will be respondents, and their
primary defense will be that their city attorney advised them to
take the action they took. Should the city attorney, who will be the
principal witness, defend that official? Should anyone providing
ethics advice defend those to whom they give advice?<br>
<br>
In fact, should anyone who advises and represents an individual as a
client solely due to the government position he holds be asked to
defend that individual when he is accused of misusing that
government position for his personal interests? When not acting as a
government official, is an individual still a city attorney's client?<br>
<br>
Another consideration is, How fair will a community see an ethics
program when its city attorney is not arguing for the community
(prosecuting the matter) but rather defending an individual
official? And who will advocate for the public in ethics
proceedings before this regional EC? This role should be more important than the defense of officials.<br>
<br>
Finally, this ethics program keeps the entire program within the local
governments, rather than bringing citizens in to oversee those who
govern their community for their own interests rather than the
public interest. Although having city attorneys handle ethics
proceedings is better than having legislative bodies handle them, it
is still not a best practice. The best practice is having citizens
provide this oversight. Second best is having an independent
individual or office, such as an inspector general, ombud, or
hearing officer. People who spend all day representing officials, and who can be fired by them, are not considered the most neutral with respect to officials. Everyone knows that any decision he make with respect to other cities' officials will apply to his own appointing authority and clients.<br>
<br>
Other cities are considering joining the interlocal agreement at the
Top of Utah, including the largest city in the area, Ogden, which is
not in Davis County. Davis County does not appear to be considering
taking part in the consolidated EC. The interlocal agreement does
not appear to have been completed. But one can get a picture of its processes by looking at the new Layton ethics commission ordinance (attached; see below)<br>
<br>
<b>Elsewhere in Utah</b><br>
An August report from the state's municipal lawyer's association
(attached; see below) says that there are talks in Utah County to
create a countywide commission. Let's hope they look at Miami and
Palm Beach County as models for doing this. From this report, it
does not appear that there will be any comprehensive local government
ethics programs in Utah, unless officials look outside their state
and consider what such a program consists of and what benefits it may
bring to their governments and their communities.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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